State v. Lovejoy

• Decision Date: 24 September 1997
• Docket Number: No. 96-686,96-686
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. LOVEJOY, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 440

79 Ohio St.3d 440

683 N.E.2d 1112

The STATE of Ohio, Appellant and Cross-Appellee, v. LOVEJOY, Appellee and Cross-Appellant.

No. 96-686.

Supreme Court of Ohio.

Submitted April 16, 1997.

Decided Sept. 24, 1997.

SYLLABUS BY THE COURT

1. The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. (Browning v. State [1929], 120 Ohio St. 62, 165 N.E. 566; State v. Adams [1978], 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, paragraph two of the syllabus, vacated on other grounds [1978], 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103; State v. Brown [1984], 12 Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889; and State v. Hicks [1989], 43 Ohio St.3d 72, 538 N.E.2d 1030, approved and followed.)

2. When a jury finds a defendant not guilty as to some counts and is hung on other counts, double jeopardy and collateral estoppel do not apply where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count.

On August 16, 1993, Christa L. Curry and her husband, Nathan Curry, were at their apartment, which they shared with Nathan's brother, Neil Curry. Christa and Nathan were planning to go to a softball game. Christa was upstairs getting ready, and Nathan was downstairs with their twin daughters. Christa heard someone kicking on the back door. Nathan yelled upstairs and asked Christa if she was making the noise. She told him that she was not. She heard Nathan say, "Hold up a minute," or "Wait a minute," and then she heard two gunshots.

As Christa came downstairs, she saw her husband fall to the floor. An armed man approached her and stuck a gun in the side of her face and then in the back of her head and forced her to lie down on the floor. The first armed man told a second man to enter the apartment. As the second man proceeded upstairs to the front bedroom, he tripped over Christa as she lay on the floor. Christa heard a loud noise from upstairs. Shortly thereafter, the second man came downstairs, and both men left the apartment and fled in a car.

Both Nathan Curry (the victim) and Neil Curry were marijuana dealers. At the time of the murder, the victim, Nathan Curry, had seven pounds of marijuana in the apartment, while his brother, Neil, had four pounds of marijuana in the apartment.

Within twenty minutes of the first police dispatch, the police apprehended the defendant-appellee and cross-appellant, Mark E. Lovejoy, and Darrell Stepherson in the vicinity. Their car had been abandoned, and several neighbors had reported seeing two young black men jumping fences and hiding in the bushes around houses in the neighborhood. One neighbor saw the men discard two guns under a bush. The guns were retrieved, and tests showed that one of those guns was the murder weapon. When arrested, the appellee had in his possession a black bag containing marijuana, which was later identified by Neil Curry as his four pounds of marijuana that had been taken from Nathan Curry's residence.

A Franklin County Grand Jury indicted appellee on five counts relating to the August 16, 1993 murder of Nathan Curry. The indictment included charges of aggravated murder with prior calculation and design in violation of R.C. 2903.01(A), aggravated murder committed during the course of a felony, i.e., an aggravated robbery in violation of R.C. 2903.01(B), aggravated robbery in violation of R.C. 2911.01, kidnapping in violation of R.C. 2905.01, and having a weapon under a disability in violation of R.C. 2923.13(A)(2). The aggravated murder with prior calculation and design and felony murder charges each included two death penalty specifications. The first was that the appellee committed the offense of aggravated murder for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the appellee, namely aggravated robbery, in violation of R.C. 2929.04(A)(3). The second specification was that the offense was committed while the appellee was fleeing immediately after committing aggravated robbery and the appellee was either the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design, in violation of R.C. 2929.04(A)(7). Further, the charge of having a weapon while under a disability contained a specification in accordance with R.C. 2941.143, alleging that the appellee made an actual threat of physical harm to Christa Curry with a deadly weapon. In addition, all charges contained a firearm specification in accordance with R.C. 2941.141.

On November 19, 1994, the first jury acquitted the appellee of aggravated murder with prior calculation and design and its lesser included offenses of murder and involuntary manslaughter. However, the jury was unable to reach a verdict on the felony murder, aggravated robbery, or kidnapping charges. Subsequently, the court declared a mistrial on those counts. The charge of carrying a firearm while under disability was tried to the bench, and the court found the appellee guilty but decided to postpone sentencing until the other three counts were retried.

After the trial court declared a mistrial, the appellee moved the trial court to dismiss the felony murder charge on which the jury had hung and to enter a judgment of acquittal on grounds of double jeopardy and collateral estoppel. The court denied the appellee's motion. In a second trial, the state retried the appellee on the remaining charges, including the felony murder charge based on the aggravated robbery, and obtained convictions for each.

The Franklin County Court of Appeals reversed the appellee's felony murder conviction, holding that the appellee's acquittal of aggravated murder with prior calculation and design and its lesser included offenses of murder and involuntary manslaughter in his first trial barred his subsequent prosecution on the felony murder charge. The appellate court based its conclusion on collateral estoppel, determining that the jury had decided in the appellee's favor in the first trial either of the common issues of his identity as a participant in these crimes or his purpose to kill. The appellate court also remanded the weapons under disability charge for a retrial.

The cause is now before this court pursuant to the allowance of a discretionary appeal and cross-appeal.

Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Joyce S. Anderson, Assistant Prosecuting Attorney, for appellant and cross-appellee.

Dennis C. Belli, Columbus, for appellee and cross-appellant.

LUNDBERG STRATTON, Justice.

The issue presented to us in this case is whether the doctrines of double jeopardy and collateral estoppel apply when a jury finds a defendant not guilty as to some counts and is hung as to other counts. We find that these doctrines do not apply where the inconsistency in the responses arises out of inconsistent responses to different counts, not out of inconsistent responses to the same count. In such cases, we further find the prosecution is entitled to retry the hung-jury counts provided that other criteria, such as sufficiency of the evidence, are met to allow retrial.

A review of the purpose and history of double jeopardy and collateral estoppel is useful in resolving this issue. Double jeopardy was established by the Fifth Amendment to the Constitution of the United States, which states: "No person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb * * *." The Fifth Amendment has been made applicable to the states through the Fourteenth Amendment.

It is well established that the Double Jeopardy Clause protects against successive prosecutions for the same offense. United States v. Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556, 567. It protects a person who has been acquitted from having to run the gauntlet a second time. Ashe v. Swenson (1970), 397 U.S. 436, 445-446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476-477. As stated in Green v. United States (1957), 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204:

"The underlying idea [embodied in the Double Jeopardy Clause], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

In addition to its primary function of safeguarding against governmental overreaching (see Justices of Boston Mun. Court v. Lydon [1984], 466 U.S. 294, 307, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311, 324), the double jeopardy guarantee protects a defendant's " 'valued right to have his trial completed by a particular tribunal.' " Crist v. Bretz (1978), 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24, 31, quoting Wade v. Hunter (1949), 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978. Once a tribunal has decided an issue of ultimate fact in the defendant's favor, the double jeopardy doctrine also precludes a second jury from ever considering that same or identical issue in a later trial. Dowling v. United States (1990), 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708, 717.

Collateral estoppel is the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings. Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be...